State v. Smith, 481 P.3d 363

Defendant faced three separate charging instruments arising from three incidents: (1) Oct 20, 2016 umbrella/vehicle damage incident (Case No. 16CR68675); (2) Nov 25, 2016 alleged confinement, assault, strangulation, and coercion of girlfriend M (Case No. 16CR75862); and (3) Feb 25, 2017 vehicle/foot eluding and meth possession after fleeing a deputy (Case No. 17CR12608).
The trial court consolidated and joined all three charging instruments under ORS 132.560(1)(b)(C) (connected acts/common scheme), over defendant’s severance objection.
At trial the jury convicted defendant of 10 offenses across the three cases; five convictions were based on nonunanimous verdicts (10-2 or 11-1) under an instruction then allowed by Oregon law.
After Ramos and related Oregon decisions, defendant challenged both (a) the nonunanimous-jury instruction and verdicts and (b) the propriety of joinder under ORS 132.560(1)(b)(C).
The court held that the trial court plainly erred by accepting nonunanimous verdicts on five serious counts and reversed those convictions; it also held that joinder of Cases 675 and 862 (and thus the later consolidation with 608) was improper, reversing convictions tied to that misjoinder but finding the error harmless for two convictions in Case 608.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Validity of nonunanimous jury instruction/ verdicts	State did not object to instruction; verdicts stand	Nonunanimous guilty verdicts on serious offenses violate Sixth Amendment (Ramos)	Plain error: five convictions based on nonunanimous verdicts reversed and remanded; unanimous/polled verdicts affirmed where applicable
2. Joinder under ORS 132.560(1)(b)(C) (connected acts/common scheme) and harmlessness of misjoinder	Cases were logically related with overlapping proof; evidence about other incidents was relevant/contextual and some cross-admissible (esp. to show motive for eluding)	Incidents were factually alien (different victims, times, locations); joinder prejudiced defendant by allowing propensity inferences and admission of otherwise inadmissible evidence	Misjoinder: charges in Cases 675 and 862 were improperly joined; consolidation with 608 did not cure misjoinder. Reversal for convictions in Case 675 and certain counts in 862; misjoinder found harmless as to possession and misdemeanor eluding convictions in Case 608

Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (Sixth Amendment requires unanimous jury verdicts for serious offenses)
State v. Ulery, 366 Or. 500 (2020) (Oregon appellate court exercised discretion to correct plain error after Ramos)
State v. Kincheloe, 367 Or. 335 (2020) (affirming convictions entered on unanimous verdicts despite erroneous 10-juror instruction on other counts)
State v. Dilallo, 367 Or. 340 (2020) (affirming conviction where no jury poll was taken despite incorrect instruction)
State v. Johnson, 199 Or. App. 305 (2005) (rejecting joinder where offenses were only generally related by subject matter and lacked interlocking facts)
State v. Keith, 294 Or. App. 265 (2018) (possession charge insufficiently connected to other charges; reversed joinder)
State v. Taylor, 364 Or. 364 (2019) (joinder proper where multiple offenses were parts of a planned series of robberies with overlapping proof)
State v. Dewhitt, 276 Or. App. 373 (2016) (joinder ok when counts are logically related with large area of overlapping proof)